Davis-Rice v. United States of America

Filing 30

ORDER DENYING MOTION TO RECUSE. Signed by Judge Maxine M. Chesney on October 19, 2011. (mmclc2, COURT STAFF) (Filed on 10/19/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

For the Northern District of California

United States District Court

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ASTARTE DAVIS-RICE,
Plaintiff,

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ORDER DENYING MOTION TO RECUSE

v.

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No. C 11-3203

UNITED STATES OF AMERICA, et al.,
Defendants.

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Before the Court is plaintiff Astarte Davis-Rice’s (“Davis-Rice”) “Motion to Recuse

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United States District Judge Maxine M. Chesney by Verified Affidavit” (hereinafter

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“Motion”), filed October 4, 2011, pursuant to 28 U.S.C. § 144 and 28 U.S.C. § 455. (See

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Mot. at 1:19-23.) Defendant United States has filed opposition thereto. Having read and

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considered the papers filed in support of and in opposition to the Motion, the Court deems

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the matter suitable for decision on the parties’ respective written submissions and rules as

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follows.

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The affidavit filed in support of the Motion references earlier cases filed by Davis-

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Rice and heard by the undersigned judge. In the affidavit, Davis-Rice purports to describe

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the rulings made in said prior actions (see Mot. at 3:24-8:28), and asserts said rulings show

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the undersigned is “personally biased and prejudiced against [her].” (See id. at 1:23.)

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Contrary to Davis-Rice’s contentions, however, the affidavit, as a matter of law, fails to

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provide sufficient grounds for recusal under either statute.
DISCUSSION

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A.

Recusal Under 28 U.S.C. § 144
Pursuant to 28 U.S.C. § 144, a judge shall recuse himself or herself when a party

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makes and files a “timely and sufficient affidavit” that the judge “has a personal bias or

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prejudice either against him or in favor of any adverse party.” See 28 U.S.C. § 144. The

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challenged judge must determine in the first instance whether the affidavit is legally

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sufficient and, if so, must refer the motion to another judge for determination. See id.; see

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also United States v. Montecalvo, 545 F.2d 684, 685 (9th Cir. 1976) (holding district judge

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did not err in refusing to recuse himself where affidavit was legally insufficient). Here, the

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Motion is both procedurally and substantively insufficient under §144.

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First, as a procedural matter, Davis-Rice’s affidavit is insufficient, because Davis-

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Rice has not provided a “certificate of counsel of record stating that [the affidavit] is made in

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good faith.” See 28 U.S.C. § 144; Robinson v. Gregory, 929 F. Supp. 334, 337-38 (S.D.

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Ind. 1996) (holding certification by member of the bar is necessary to prevent abuse of

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recusal procedures); see also United States v. Bennett, No. SACR 03-25 AHS, 2008 WL

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2025074, at *2 (C.D. Cal. May 5, 2008) (same).1

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Second, as a substantive matter, the affidavit is insufficient, because it contains no

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facts that would support a finding that the Court’s rulings were based on bias “stem[ming]

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from an extrajudicial source” rather than on “what [the Court] learned from [the Court’s]

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participation in the case.” See United States v. Grinnell Corp., 384 U.S. 563, 583 (1966).2

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Davis-Rice’s repeated conclusory assertion that the undersigned is “personally biased

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against [her] as a convicted felon” (see, e.g., Mot. at 1:23, 4:6, 5:24) is unsupported by

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Even assuming Davis-Rice could make the required certification herself, she has
not done so here.
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Contrary to Davis-Rice’s assertion, the Court’s “extraneous research” (see Mot. at
5:11-12), specifically, the Court’s reference in one of Davis-Rice’s habeas cases to the
Third Circuit’s published opinion on her direct appeal (see Mot. Ex. E at 1 n.1), does not
constitute an extrajudicial source.
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“specifically allege[d] facts,” and, consequently, provides no legally cognizable support for

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the motion. See United States v. Sibla, 624 F.2d 864, 867 (9th Cir. 1980) (holding “[a]n

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affidavit filed pursuant to [§ 144] is not legally sufficient unless it specifically alleges facts

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that fairly support the contention that the judge exhibits bias or prejudice directed toward a

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party that stems from an extrajudicial source”).
In sum, the affidavit is, as a matter of law, insufficient to support recusal under

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§ 144.

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B.

Recusal Under 28 U.S.C. § 455

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Davis-Rice’s affidavit likewise is insufficient to support recusal under § 455.

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Pursuant to § 455, a judge “shall disqualify himself in any proceeding in which his

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impartiality might reasonably be questioned.” See 28 U.S.C. § 455(a). As noted above,

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Davis-Rice’s motion is based on rulings made in judicial proceedings. For purposes of

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§ 455, however, “judicial rulings alone almost never constitute a valid basis for a bias or

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partiality motion . . . and can only in the rarest circumstances evidence the degree of

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favoritism or antagonism required.” See Liteky v. United States, 510 U.S. 540, 555 (1994).

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A judge’s rulings and decisions are, “[a]lmost invariably, . . . proper grounds for appeal, not

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for recusal.” See id. Indeed, even “judicial remarks during the course of a [proceeding]

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that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases”

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ordinarily will not suffice to support a motion for recusal. See id. Here, the affidavit does

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no more than describe ordinary “judicial rulings” and “routine trial administration,” see id. at

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556, and the Court is unaware of any circumstances that otherwise would require

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disqualification or recusal.
CONCLUSION

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For the reasons stated above, Davis-Rice’s Motion is hereby DENIED.

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IT IS SO ORDERED.

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Dated: October 19, 2011
MAXINE M. CHESNEY
United States District Judge

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